29 Mo. App. 249 | Mo. Ct. App. | 1888
This suit was instituted before a justice of the peace on a promissory note executed by the defendant and payable to O. M. Smith, deceased. The suit was brought by the administrator of said O. M. Smith, and was docketed as follows: “Thomas M. Smith, administrator of the' estate' of O. M. Smith, deceased, v. E. C. Zimmerman.” The plaintiff filed with the justice of the peace no petition or statement of his cause of action, but simply filed the note in suit. An appeal was taken by the plaintiff to the circuit court from a judgment against him. In the latter court the defendant, on the trial, objected to the introduction of any evidence on the ground that there was no statement or petition on file in the case. The court overruled the objection. From a judgment against him the defendant has appealed to this court.
The question is, was the note filed with the justice of the peace a sufficient statement in and of itself? For an affirmative answer to this question the plaintiff’s, counsel relies upon the case of The Mastin Bank v. Hammerslough, 72 Mo. 274, and section 2852, Revised Statutes. The case referred to was begun before a justice of the peace, and was on a promissory note. The note was filed with the justice of the peace, and no other statement was filed. The plaintiff was neither the payee nor indorsee of the note, and the note, therefore, failed to show any demand in favor of plaintiff. Nevertheless, the court held the note a sufficient statement. The decision was based upon certain statutes of the state then in force with reference to justices of the peace. They were sections 9, 12, and 13, of chapter 178, pages 700-701, Revised Statutes, 1865, and section 12, of
The court, after quoting the above sections of the •statutes at length, said : “We think it manifest, from these provisions taken together, that a written statement of the plaintiff’s cause of action is only required when the suit is not on an account, or an instrument of writing which purports to have been executed by defendant. It is true, the note in this case discloses no demand that plaintiff has, as he was neither payee noy indorsee; but, under section 12, the defendants, when they appeared, could have had a particular verbal statement of the facts upon which plaintiff relied for a .recovery, if they desired it.”
The three sections of chapter 178, above set out, .appear in the Revised Statutes of 1879, as section 2852, Avhich is as follows: “ When the suit is founded on any instrument of writing, purporting to have been executed by the defendant, and the debt or damages claimed may be ascertained by such instrument, the same shall be filed with the justice, and no other statement or pleading shall be required. If the suit is
The change made in the statutes on this subject, by the revision of 1879, is a significant one. Under the present statutes, the instrument of writing will not alone constitute a sufficient statement unless it discloses a demand in favor of the plaintiff, because now the statement on file cannot be supplemented on motion of the defendant by a verbal statement by the plaintiff of the nature of his demand. In this case the note disclosed no demand in favor of plaintiff. Therefore, it was necessary for him to file a statement of the facts constituting his cause of action, and since he sued as administrator, he should have shown in the body of the statement, by proper allegations, that he did sue as such administrator, and not in his individual capacity.
For this reason, the judgment must be reversed. But, as the statement may be amended (Bults v. Phelps, 79 Mo. 302; Rev. Stat., sec. 3060), the cause will be remanded. With the concurrence of the other judges, it is so ordered.
